The alleged mastermind of the deadly bombing of the USS Cole in 2000 is scheduled Wednesday to face a military judge before a war crimes tribunal in Guantanamo Bay, Cuba.

Abd al-Rahim al-Nashiri, a 46-year-old Saudi of Yemeni descent, is scheduled to be arraigned on charges that include murder, terrorism and conspiracy.

He could face the death penalty if convicted.

Nashiri is the first alleged high-ranking al-Qaida figure to face a military tribunal at Guantanamo since U.S. President Barack Obama ended a freeze on such trials earlier this year.

He was captured in 2002, interrogated in secret CIA prisons overseas, and transferred to the detention center at Guantanamo Bay, Cuba in 2006.

Nashiri’s attorneys argue he should not be prosecuted since he was subject to the near-drowning interrogation technique called waterboarding and mock executions.

Richard Kammen is the lead defense council and an expert in death penalty cases.

“By torturing Mr. Nashiri the United States has really lost all moral authority to try and kill him," said Kammen.

The chief prosecutor, Army Brigadier General Mark Martins, says any confessions resulting from torture will not be allowed in court.

“Let me start with an important provision in the Military Commissions Act that requires statements that are admitted to be voluntary," said Martins. "And it precludes the admission of any statement obtained as a result of torture, or cruel, inhuman or degrading treatment.”

In the attack on the Cole, two suicide bombers in civilian clothes waved at the crew and then drove their boat full of explosives into the side of the warship.

The blast tore a large hole in the side of the ship, killing 17 sailors and injuring dozens more.

Prosecutor Martins argues a military commission is a fair way to decide Nashiri’s case.

“The accused in a military commission is going to be well represented and he is going to have capital counsel that knows how to defend him and how, if he is found guilty beyond a reasonable doubt, how to present a mitigation case," he said.

However, defense attorney Kammen says a military commission trial will not provide his client with a fair trial.

“This is a system that is organized to convict, it is organized to kill," he said. "There is nothing about this that is fair.”

Defense attorneys have said Nashiri’s treatment while in U.S. custody will be a major issue during his trial. They predict the case will take at least several years to resolve.